Scottish Court of Session Decisions

Subject_1 SUPERIOR AND VASSAL.
Subject_2 SECT. XXII.

In Actions at the Superior's instance, who must be called? - Concursus actionem at the Superior's instance.

Gavin Cochran
v.
-

Date: 22 February 1668
Case No. No. 95.

Process sustained, notwithstanding the minority of a subvassal called in an action of recognition.

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Gavin Cochran, as donatar to the recognition of certain lands, holden ward of my Lord Cochran, pursues the vassal, as having alienate the major part, and also the sub-vassal, to hear and see it found and declared, that the lands had recognosced by the alienation made by the vassal to the sub-vassal. It was alleged for the sub-vassal that he was minor, and therefore during his minority, non tenetur placitare super hæreditate paterna. It was answered, that that holds only in disputing the minor's rights, but is not sufficient against the obligation or the delinquency of the defunct. 2dly, The party principally called in this process, is the vassal who is major, and whose fee falls to the superior by his alienation, and the sub-vassal's right falls only in consequence, so that no privilege of the sub-vassal can hinder the superior to declare the recognition of his immediate vassal.

The Lords repelled the defence, and sustained process.

Stair, v. 1. p. 531.